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Wiley v. ACCC Insurance Co.

Court of Appeals of Texas, First District

May 10, 2018

WILLIS FLOYD WILEY, Appellant
v.
ACCC INSURANCE COMPANY, Appellee

          On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2017-64150

          Panel consists of Justices Higley, Brown, and Caughey.

          MEMORANDUM OPINION

          PER CURIAM

         Appellant, Willis Floyd Wiley, proceeding pro se, attempts to appeal from the trial court's order, signed on January 24, 2018, by filing a notice of appeal on March 22, 2018. We dismiss this appeal for want of jurisdiction.

         Generally, a notice of appeal is due within thirty days after the final judgment or appealable order is signed. See Tex. R. App. P. 26.1. The deadline to file a notice of appeal is extended to ninety days after the date the judgment is signed if, within thirty days after the judgment is signed, any party timely files a motion for new trial, motion to modify the judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and conclusions of law. See id. 26.1(a); Tex.R.Civ.P. 329b(a), (g). The time to file a notice of appeal may also be extended if, within fifteen days after the deadline to file the notice of appeal, a party properly files a notice and an extension. See Tex. R. App. P. 10.5(b), 26.3.

         According to the clerk's record, no post-judgment motion was filed by Wiley after the trial court's order was signed on January 24, 2018, which granted the appellee's Texas Rule of Civil Procedure 91a motion to dismiss. See Tex. R. Civ. P. 91a.1. Thus, Wiley's notice of appeal was due within thirty days of the January 24, 2018 order, or by February 23, 2018, and even with the fifteen-day grace period, the extended deadline was March 12, 2018. See Tex. R. App. P. 4.1(a), 26.1. Wiley's notice of appeal was filed on March 22, 2018, ten days after the fifteen-day grace period ended. Wiley neither filed a motion for an extension of time to file the notice of appeal, nor can one be implied because the notice of appeal was untimely filed beyond the fifteen-day grace period. See Tex. R. App. P. 26.3(b); Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997).

         On March 29, 2018, the Clerk of this Court notified Wiley that this appeal was subject to dismissal for want of jurisdiction unless he timely responded and showed how this Court had jurisdiction. See Tex. R. App. P. 42.3(a), (c). After this Court extended his deadline to file a response, Wiley timely filed a response on April 23, 2018. Wiley contends that his notice of appeal was timely because he is actually appealing from the trial court's failure to timely rule on his motion for summary judgment. Because Wiley noticed his motion for a hearing on submission for February 23, 2018, he claims that he timely appealed within thirty days after this hearing date passed with no ruling on his motion.

         In ordinary cases, a trial court's failure to rule within a reasonable time period may constitute an abuse of discretion for which the remedy of a writ of mandamus is available. See, e.g., In re Lee, 411 S.W.3d 445, 450 n.7 (Tex. 2013) (orig. proceeding) (recognizing that mandamus relief is available to remedy trial court's erroneous refusal to enter judgment on mediated settlement agreement). However, this Court generally has appellate jurisdiction only over appeals from signed, final judgments or orders unless a statute authorizes an interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.012, 51.014(a)(1)-(12) (West 2014) (listing appealable interlocutory orders); see also Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001).

         Rule 91a allows a party to move for early dismissal of a cause of action on the grounds that it has no basis in law or fact, and it requires the trial court to grant or deny such a motion within forty-five days after the motion is filed. See Tex. R. Civ. P. 91a.1, a.3(c). Appellate courts review Rule 91a dismissals under a de novo standard of review, but we lack appellate jurisdiction over denials of such motions. See Walker v. Owens, 492 S.W.3d 787, 789 (Tex. App.-Houston [1st Dist.] 2016, no pet.); cf. S. Cent. Houston Action v. Stewart, No. 14-15-00088-CV, 2015 WL 1508699, at *1 (Tex. App.-Houston [14th Dist.] Mar. 31, 2015, no pet.) (holding that appellate court has no jurisdiction over denial of Rule 91a motion).

         While Wiley could have filed a mandamus petition to challenge the trial court's refusal to rule on his motion for summary judgment within a reasonable time period, he cannot appeal such a refusal. See Tex. R. App. P. 26.1; see, e.g., In re Granite Shop, No. 02-08-00410-CV, 2009 WL 485696, at *3 (Tex. App.-Fort Worth Feb. 24, 2009, orig. proceeding) (per curiam) (mem. op.) (granting mandamus relief to compel respondent to vacate order that earlier judgment was final and to proceed to rule on relator's partial summary judgment motion). Thus, the only signed and appealable order is the January 24, 2018 order granting the Rule 91a motion to dismiss for which Wiley's March 22, 2018 notice of appeal was untimely filed. Therefore, Wiley's response was inadequate to show how this Court has jurisdiction over his untimely appeal. See Tex. R. App. P. 26.1, 42.3(c). Without a timely filed notice of appeal, this Court can take no action other than to dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 25.1, 26.1; Verburgt, 959 S.W.2d at 617-18.

         Accordingly, we dismiss this appeal for want of jurisdiction. See ...


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